[Federal Register Volume 66, Number 7 (Wednesday, January 10, 2001)]
[Rules and Regulations]
[Pages 1859-1862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-551]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 95 and 177

[USCG-1998-4593]
RIN 2115-AF72


Revision to Federal Blood Alcohol Concentration (BAC) Standard 
for Recreational Vessel Operators

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising the Federal Blood Alcohol 
Concentration (BAC) standard under which a recreational vessel operator

[[Page 1860]]

would be considered operating while ``intoxicated.'' For recreational 
vessel operators, the final rule lowers the current Federal BAC 
threshold from .10 BAC to .08 BAC. This change is appropriate because 
boating accident statistics show that alcohol use remains a significant 
cause of recreational boating deaths and because we support a trend in 
State recreational boating laws toward the .08 BAC standard. Further, 
the revised Federal BAC standard does not supercede or preempt any 
enacted State BAC standard. Additionally, the final rule replaces the 
term ``intoxicated'' with the phrase ``under the influence of alcohol 
or a dangerous drug.'' This change brings the regulations into 
conformance with current statutory language. The final rule is expected 
to reduce the number of recreational boating deaths and injuries 
resulting from accidents caused by operators under the influence of 
alcohol or a dangerous drug.

DATES: This final rule is effective March 12, 2001.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-1998-4593 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    You may obtain a copy of this rule by calling the U.S. Coast Guard 
Infoline at 1-800-368-5647 or by accessing either the Web Site for the 
Office of Boating Safety at http://www.uscgboating.org, or the Internet 
Site for the Docket Management Facility at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
contact Carlton Perry, Project Manager, Office of Boating Safety, U.S. 
Coast Guard, by telephone at 202-267-0979 or by e-mail at 
[email protected]. If you have questions on viewing the docket, 
call Dorothy Beard, Chief, Dockets, Department of Transportation, 
telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Background and Purpose

    On December 14, 1987, we published a final rule in the Federal 
Register (52 FR 47526), in which we set a Federal standard for 
intoxication applicable to recreational vessel operators using a .10 
BAC. The rule adopted any enacted State BAC standard of intoxication as 
the Federal BAC standard, and applied the State BAC standard to 
recreational vessel operators within that State. If a State did not 
have an enacted BAC standard for ``intoxication,'' a provision allowed 
us to adopt a State BAC standard for ``under the influence'' or ``while 
impaired,'' instead of ``intoxicated.'' In that final rule, we noted 
that we would consider revising the Federal BAC standard if the States 
developed a trend toward adopting the .08 BAC standard for operating a 
vessel on the water.
    We began this rulemaking project in response to recommendations 
from the National Boating Safety Advisory Council (NBSAC), to update 
the existing regulations, and to ensure that terminology in our 
regulations conforms with current statutory authorities.
    Although the number of boating deaths dropped from 1100 in 1986 to 
734 in 1999, the number of fatal incidents where alcohol was reported 
as a causal factor remains stable at about 120. A review of statistics 
on recreational boating accidents during 1999 showed that there was 
evidence, or a reasonable likelihood, that alcohol involvement in 
reported accidents accounted for 26 percent of all boating fatalities.
    The Oil Pollution Act of 1990 revised 46 U.S.C. 2302(c) by 
substituting the term ``under the influence of alcohol, or a dangerous 
drug in violation of a law of the United States'' for the term 
``intoxicated.'' As a result, the terms ``intoxication'' and 
``intoxicated,'' used in 33 CFR parts 95 and 177, no longer conform to 
the statutory authority. This rule revises them accordingly.
    After studying recreational boating safety regulations in October 
1997, NBSAC recommended that the Coast Guard track State BAC levels. 
They suggested that if we found a trend toward revising State standards 
to .08 BAC, then we should support that effort by revising the Federal 
standard, found in 33 CFR 95.020, to .08 BAC as well.
    In 1987 only 21 States had enacted statutes using a BAC to define 
``intoxication'' or ``under the influence'' for recreational vessel 
operation. Nineteen States used a .10 BAC and two States used a .08 
BAC. Today 54 State jurisdictions, as defined in 46 U.S.C. 2101(36), 
have a BAC standard. Thirty-four use .10 BAC, nineteen use .08 BAC, and 
one uses .08 BAC only when there has been an injury. Also, eleven of 
the original twenty-one States and three additional States that 
initially set a .10 BAC standard have revised their standard from .10 
BAC to .08 BAC. We acknowledge that the trend among States is toward 
using a .08 BAC standard, and we are revising the Federal BAC standard 
accordingly. We will continue to adopt a State's BAC standard for 
waters under the State's jurisdiction.
    In a memorandum dated March 3, 1998, the President directed the 
Secretary of Transportation to develop an Action Plan to promote 
adoption of the .08 BAC standard for operating a vehicle on ``Federal 
property, including areas in national parks, and on Department of 
Defense installations, and ensuring strong enforcement and publicity of 
this standard.'' The Secretary's Action Plan included the proposed 
revision of the Federal BAC standard for operator's of recreational 
vessels, providing support for the DOT effort on water as well as on 
land. The Federal BAC standard for operators of vessels that are 
inspected, or subject to inspection under Chapter 33 of Title 46, 
United States Code, will remain at .04 BAC.

Regulatory History

    On March 16, 2000, we published a notice of proposed rulemaking 
entitled Revision to Federal Blood Alcohol Concentration (BAC) Standard 
for Recreational Vessel Operators in the Federal Register (65 FR 
14223). We received 20 letters commenting on the proposed rule. No 
public hearing was requested and none was held.

Discussion of Comments and Changes

    We received a total of 20 comments on the proposed revisions to the 
regulations during the comment period. Two of the comments were from 
State Boating Law Administrators and an additional comment was 
submitted by the National Association of State Boating Law 
Administrators (NASBLA). Two other comments were submitted by the 
National Boating Federation (NBF) and the Boaters Against Drunk Driving 
(BADD).
    Twelve of the comments, including the comments from the Missouri 
and the California Boating Law Administrators, NASBLA, NBF and BADD, 
generally supported revising the Federal BAC standard from .10 BAC to 
.08 BAC.
    One comment supporting the BAC revision suggested that in addition 
to lowering the BAC standard, the Coast Guard needs to increase its 
detection and arrest of intoxicated operators; enforcement cannot be 
borne solely by the States.
    Eight of the comments generally opposed revising the Federal BAC 
standard from .10 BAC to .08 BAC, several suggesting that the change 
would do little or nothing to reduce the number of drunk boaters.

[[Page 1861]]

    One comment stated that there is not enough funding to enforce the 
new .08 BAC level.
    Several other comments stated that we needed something else instead 
of new laws, either more education, more boater awareness, more 
enforcement, or more life saving.
    Another comment suggested that not many accidents actually involved 
individuals with a BAC between .10 and .08.
    One comment stated that machines testing BAC are inaccurate 
compared to blood tests, are polluted by previous tests administered, 
that individual health condition, fat to muscle ratio, and age 
determines the effect of alcohol on the individual, and suggested that 
behavior is a better indicator than BAC level.
    One comment expressed concern that the change would send the wrong 
message to law enforcement officers and adversely affect the wrong 
people, the dinner crowd.
    Another comment asserted that most arrests for BUI are made in 
harbors to people in dinghies or powerboats exceeding the 6 knot speed 
limit and that most accidents occur outside of harbors where speed, 
adherence to rules of the road and sheer stupidity are not monitored.
    When setting the initial standard at .10 BAC, we decided against 
.08 BAC because the majority of States then used a .10 BAC. However, in 
view of the Presidential initiative to establish a .08 BAC standard on 
the land and the increasing number of States setting a .08 BAC standard 
on the water, we've decided it is now appropriate to revise the Federal 
standard on the water to .08 BAC. The revised standard is not an 
attempt at zero tolerance policy and will neither increase the cost of 
enforcement nor change the effectiveness of the BAC testing equipment 
currently in use.
    This rulemaking would impose no costs for the boating public or 
even to the Government, since the Coast Guard Boarding Officer 
personnel already enforce the .08 BAC or other BAC level in those 
States with such a BAC level. Boating accident statistics show that 
alcohol use remains a significant cause of recreational boating deaths, 
and we support the trend in State boating laws toward the .08 BAC 
standard. The rule should reduce the number of recreational boating 
deaths and injuries resulting from accidents caused by operators under 
the influence of alcohol or a dangerous drug.
    The Coast Guard will continue its efforts to make boaters more 
aware of the effects of alcohol on operation of a recreational vessel 
and to work with State law enforcement officers to ensure appropriate 
levels of enforcement on the water. We will continue to enforce all 
appropriate laws and regulations, including negligent operation of a 
vessel and the navigation rules. Comments suggesting changes related to 
increasing State funding and revising the BAC standard for commercial 
vessel operators are beyond the scope of this rulemaking.
    After considering all of the above comments, the Coast Guard has 
decided to adopt the revision to the BAC standard and make other 
technical changes as proposed.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget (OMB) has 
not reviewed this rule under that Order. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Transportation (DOT) (44 FR 11040, February 26, 1979).
    A final Regulatory Evaluation under paragraph 10e of the regulatory 
policies and procedures of DOT follows:

1. Cost of Rule

    This rulemaking would impose no costs for the boating public. Costs 
to the government would be non-existent as well because the Coast Guard 
already trains its Boarding Officer personnel on use of the .08 BAC 
level to properly prepare them for working in those States with such a 
BAC level.

2. Benefit of Rule

    This rule is appropriate because boating accident statistics show 
that alcohol use remains a significant cause of recreational boating 
deaths and because we support a trend in State boating laws toward the 
.08 BAC standard. The rule is expected to reduce the number of 
recreational boating deaths and injuries resulting from accidents 
caused by operators under the influence of alcohol or a dangerous drug.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
considered whether this rule would have a significant economic effect 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    This revision of the Federal BAC standard applies to operators of 
recreational vessels on waters subject to the jurisdiction of the 
United States, as defined in 33 CFR 2.05-30. This revision of the 
Federal BAC standard will continue to apply to recreational vessels 
owned in the United States, while operating on the high seas, as 
defined in 33 CFR 2.05-1. Further, since this rule would continue to 
adopt State enacted BAC standards, recreational vessel operators in 
States with enacted BAC standards would not be subject to a new BAC 
standard unless a State changes its own enacted BAC standard. Only 
those recreational vessel operators in States without enacted BAC 
standards and on navigable waters of the U.S. outside of the States 
would be subject to a new BAC standard.
    Because the provisions of the Regulatory Flexibility Act do not 
apply to individuals, the Coast Guard certifies under 5 U.S.C. 605(b) 
that this final rule will not have a significant economic impact on a 
substantial number of small entities.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they can better evaluate its 
effect on them and participate in the rulemaking. We provided the name, 
telephone number and e-mail address of a contact for small entities if 
they felt that the rule would affect their small business, 
organization, or governmental jurisdiction and if they had questions 
concerning its provisions or options for compliance. Small businesses 
may send comments on the actions of Federal employees who enforce, or 
otherwise determine compliance with, Federal regulations to the Small 
Business and Agriculture Regulatory Enforcement Ombudsman and the 
Regional Small Business Regulatory Fairness Boards. The Ombudsman 
evaluates these actions annually and rates each agency's responsiveness 
to small business. If you wish to comment on actions by employees of 
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

[[Page 1862]]

Federalism

    We have analyzed this rule under Executive Order 13132, Federalism, 
and have determined that, because the Federal BAC standard will not 
supercede or preempt any enacted State BAC standard, this rule does not 
have implications for federalism under that Order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their regulatory 
actions not specifically required by law. In particular, the Act 
addresses actions that may result in the expenditure by a State, local, 
or tribal government, in the aggregate, or by the private sector of 
$100,000,000 or more in any one year. Though this rule will not result 
in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not concern an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Environment

    We considered the environmental impact of this rule and concluded 
that, under figure 2-1, paragraph (34)(a), of Commandant Instruction 
M16475.1C, this rule is categorically excluded from further 
environmental documentation. The rule makes a minor revision to the 
Federal BAC standard for the level at which an operator of a 
recreational vessel is deemed to be impaired. A ``Categorical Exclusion 
Determination'' is available in the docket where indicated under 
ADDRESSES.

List of Subjects

33 CFR Part 95

    Alcohol and alcoholic beverages, Drugs, Marine safety, Vessels.

33 CFR Part 177

    Alcohol and alcoholic beverages, Drugs, Marine safety, Vessels.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR parts 95 and 177 as follows:

PART 95--OPERATING A VESSEL WHILE UNDER THE INFLUENCE OF ALCOHOL OR 
A DANGEROUS DRUG

    1. The authority citation for part 95 continues to read as follows:

    Authority: 33 U.S.C. 2071; 46 U.S.C. 2302; 49 CFR 1.46.


    2. Revise the part heading to read as shown above.


Sec. 95.001  [Amended]

    3. In Sec. 95.001(a), remove the words ``intoxication.'' and 
``intoxicated'' and add, in their place, the words ``under the 
influence of alcohol or a dangerous drug.''

    4. Amend Sec. 95.010 by adding the following definitions in 
alphabetical order to read as follows:


Sec. 95.010  Definition of terms as used in this part.

* * * * *
    Blood alcohol concentration level means a certain percentage of 
alcohol in the blood.
* * * * *
    State means a State or Territory of the United States of America 
including but not limited to a State of the United States, American 
Samoa, the Commonwealth of the Northern Marianas Islands, District of 
Columbia, Guam, Puerto Rico, and the United States Virgin Islands.
* * * * *
    Under the influence means impaired or intoxicated by a drug or 
alcohol as a matter of law.
* * * * *

    5. Amend Sec. 95.020 by revising the section heading, the 
introductory text, and paragraph (a) to read as follows:


Sec. 95.020  Standard for under the influence of alcohol or a dangerous 
drug.

    An individual is under the influence of alcohol or a dangerous drug 
when:
    (a) The individual is operating a recreational vessel and has a 
Blood Alcohol Concentration (BAC) level of .08 percent or more, by 
weight, in their blood;
* * * * *

    6. Amend Sec. 95.025 by revising the section heading and paragraphs 
(a) and (b) to read as follows:


Sec. 95.025  Adoption of State blood alcohol concentration levels.

    (a) This section applies to operators of recreational vessels on 
waters within the geographical boundaries of any State that has 
established by statute a blood alcohol concentration level for purposes 
of determining whether a person is operating a vessel under the 
influence of alcohol.
    (b) If the applicable State statute establishes a blood alcohol 
concentration level at which a person is considered or presumed to be 
under the influence of alcohol, then that level applies within the 
geographical boundaries of that State instead of the level provided in 
Sec. 95.020(a) of this part.
* * * * *


Sec. 95.030  [Amended]

    7. Amend Sec. 95.030 by revising the section heading and the 
introductory text to read as follows:


Sec. 95.030  Evidence of under the influence of alcohol or a dangerous 
drug.

    Acceptable evidence of when a vessel operator is under the 
influence of alcohol or a dangerous drug includes, but is not limited 
to:
* * * * *


Sec. 95.040  [Amended]

    8. In Sec. 95.040, paragraph (a), remove the word ``intoxicated'' 
and add, in its place, the words ``under the influence of alcohol or a 
dangerous drug.''

PART 177--[AMENDED]

    9. The authority citation for part 177 continues to read as 
follows:

    Authority: 46 U.S.C. 4302, 4311; 49 CFR 1.45 and 1.46.


Sec. 177.07  [Amended]

    10. In Sec. 177.07(b), remove the word ``intoxicated'' and add, in 
its place, the words ``under the influence of alcohol or a dangerous 
drug.''

    Dated: December 27, 2000.
Terry M. Cross,
Rear Admiral, Coast Guard, Assistant Commandant for Operations.
[FR Doc. 01-551 Filed 1-9-01; 8:45 am]
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